# FILED
February 9, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9711-CR-00512 Appellee, ) ) Sumner County V. ) ) Honorable Jane W. Wheatcraft, Judge ) MARK CRITES, ) (Violation of Community Corrections) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Zoe Laakso John Knox Walkup Assistant Public Defender Attorney General & Reporter 117 East Main Street Gallatin, TN 37066 Georgia Blythe Felner Counsel for the State 425 Fifth Avenue North Nashville, TN 37243-0493 Lawrence Ray Whitley District Attorney General Lytle Anthony James Assistant District A

ttorney General 113 East Main Street Gallatin, TN 37066

OPINION FILED: _________________________

______________ REVERSED AND

REMANDED
L. T. LAFFERTY Senior Judge-2- 

### O P I N I O N

Mark Crite s appeals from the revocation of his community correctio ns sentence. He challenges boththe propriety of that revocation a nd his resenten cing, arg uing that: (1) the trial cou rt abused its discretion in revoking his c

ommunity corrections

sentence; (2) the trial court misapplied certain enhancement fact ors and that his sentences

are, therefore, excessiv e; and (3) the trial cour

t erred in ordering
consecu tive sentencing. After careful review of the re cor d and arguments of counsel, we conclude the trial court relied upon improper evidence in revokin g the community corrections s entence. We remand for another revocation heari ng.

I. PROCEDURAL BACKGROUND

On July 18, 1996, the appellant pled guilty to one count each of burglary and t heftove r $500. He was sentenced t o consecutive terms of tw o years for the burglary and one ye ar for th e theft . Except f or five months in the Sumner County Jail, these sentences we re to be served on community corrections.

On April 23, 1997, a warrant was issued for the appellant’s violation of his community

corrections sentence. This warrant alleged that the appellant had been arrested on January 23, 1997 , on char ges of th eftover $1,000 and evading arrest. On June 17, 199 7, the w arrant was amended to allege the following additional violations: (1) Positive drug screen for marijuana and cocaine on June 6, 1997; (2) Positive drug test for cocaine from SmithKli ne Labor atory; (3) Admitted to smoking marijuana in j ail ab out three weeks prior to drug screen; (4) Failure to pay court costs; (5) Arrested on June 11, 1997, in Franklin, Tennessee onthe following charges:1 Actuall y, th e trial court heard testi mony in the revocation p roceeding and

immediate ly

moved into the sentencing hearing prior to making any findings in th e revocation proceeding. The findings and conclusions

of the trial court wer

e stated at the conclusion of the se ntencin g hearing. Although we have found no prejudice to appellant as a result of

this unusual procedure, w e discourage it. Evidence at a sentencing hearing maybe irrelev

ant to a rev

ocation proc

eeding, and vice-ve rsa. Furth er, judici al economy is not adversely affected by the limited time requir

ed to announce findings in the revocation proceeding before the sentencing hearing, assuming ther e is a revocation. -3- (a) DUI, fifth offense; (b) Driving on a rev

oked license, eighth offense; (c) Disorderly conduct; (d) Evading arrest; and (e) Habitual offender.
Followinga hearing, the trial court found “that Mr. Crit es has been charged with [additional offenses] . . . and is simply not suitable for a community-based program.” No findings were made as to the ot he r grounds alleged in the warrant. The community corrections sentence w as revoked. 1

In a subsequent sentencing hearing, the trial court found two applicable enhancement factor s: the a ppellant has a history of unw illingness to comply

with the conditions of a sentence involving release in the community, see Tenn. Code Ann. § 40- 35-114(8); and the felonies were committed w hile the appellant was s erving a commun itybased sentence, see Tenn. Code Ann. § 40-35-114(13). The trial count acknowledged no mit i gating factors. Based on these findings, the trial court revoked the appellan t’s community

corrections sentence and resentenced him to the Range I maximums of four years’ incarceration for the burglary conviction and two years for the theft. The trial court further ordered these sentences to run consecut ively, f inding that the appellant has an e xtensive re cord of criminal activi ty, see Tenn. Code Ann. § 40-35-115(b)(2), and that
consecu tive terms of confinement “reasonably relate[] tothe seriousness of the offenses” and are “necessary to pr otect society from this man.” See Tenn. Code Ann. §§ 40-35-102, -103; State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995).-4- II. VIOLATION OF COMMUNITY CORRECTIONS

The a ppel lant first argues that the t rial court erred in r evoking his community corrections

sentence. Whether to revoke a community corrections sent ence is a decision committed to the sound discretion of the trial court. We review that decision for abuse of discretion. However, this C ourt will not upset the trial court’s decision on appeal if there is any substantial evi dence to support the conclusion that a violation occur

red. See State
v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). Proof of a violation need not be establ ished beyond a reasonable doubt, but is sufficient if the proof allow s the trial court to make a conscientious and intelli gent judgment. See id.

The appellantasserts that the trial court should not have all owed Probation Officer Valerie Lee to testify regardin g the allegations in the community corrections violation warrant, including the appellant’ s alleged June 11, 1997 arre st, the drug screening performed by the SmithKline laboratory, and the inter nal drug screening performed by the probation office. He argues that the evidence presented by Lee on each o f these allegations was

unreliable hearsay and, as such, violated his r ightto confront and crossexamine the witnesses against hi m.
A. Revocation Proceeding
Regarding the allegation of the appella nt’s arr est, Lee testified that on June 11, 1997, while the appella nt was serving hi s community corrections sentences, he was arrested and charged with DU I, fifth offense; driving on a rev oked license, eighth offense; diso rderlyconduct; evading arre st; and habitual offender. Although L ee stated that sh e had not personally interviewed the officer who arrested the appellant on the June 11, 1997 charges, she did pro vide certif ied copies of both the affidavits of compl aint and the indictments relating to these charges. Appellant ob jected to this testimony.2 Although it is somewhat unclear from the testimony, it appears the test was conducted by another probation officer and not Lee. Lee was testifying from records.

3 See footnote 2. -5- Lee then testified that, while in j ail on J une 6, 1997, the appellant had admitted smoking marijuan a and had tested p ositive f or both m arijuana and coca ine on a lo callyconducted screening. 2 She stated that the appellant’s sample was then sent by another probation officer to the SmithKli ne laborator y, where it tested po

sitive for cocaine. The defense objected to Lee’s testimony and continues to contes t that issue on appeal. However, in clarifying its objection at the hearing, the defense specifically state d that it did not object to Lee’s testimony regarding the appellant’ s admission to smoking mari juana.

L ee explained how the loc al screening is conduct ed at her probation office and testified that she had personally received approximately eigh t hours of drug-t est training. 3 Over objection by the defense, the tr ial court admitted the SmithK l ine laboratory report, finding that it was impractic al to require the

state to produce witness es from the SmithKline laboratory, which is located in Atlanta, Geor gia.

The necessity

of this Court’s examinati on of the various issues raised by appel lant appears to have been limited by the trial court’s findings with regard to the revoc ation. The sole finding of the tr ial court to support the revocation was that the appellant had been “charged”

with various offenses. Accordingly, w e will first exami ne the propriety of rely ing upon these “charges.”
B. Relying Upon An Indictment

The fact that one has been indicted for a new off ense does not establish a violation. A n indic tment is based upon probable cause, State v. Brackett , 869 S.W.2d 936, 938 (Tenn. Crim. App. 1993), whereas the standard for revocation is prepond erance of the evidence. State v. Harkins , 811 S.W.2d at 82.-6- A mere accusa ti on, stan ding al one, is not suffi cient to justify revoca tion of a community

corrections sentence. See Id. at 83. The state is requir ed to present at

least
some fact which would permit the tria l court to make a conscientious and intelligent judgmentas to the violation. State v. Danny McDonald , C.C.A. No. 01C01-9102-CC00 032, MauryCounty (Tenn. Crim. App. fil ed May 7, 1992, at Nashv ille)(holding an indictment

itself is insufficient to establish a probation violation). The trial court erred in relying upon the indictments.
C. Relying Upon Affidav its

The state argues that certified copies of the affidavits of complaint constitute proper e v idence upon which to base the rev ocation. We respectfully disagree. The affidavits
were executed by a police officer who did not t

estify at the revocation hearing . Appellant objected to the introduction of this ev idence. In a revocation pr oceeding the accused must be afforded due process, which inclu des the conditional right to confront and crossexamine witnesses. Gagnon v. Scarp elli , 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Although the ri ght t o cr oss-examine adverse w itnesses is not absolute and maybe relaxed under certain circumstances, there must be a finding of good cau se for not allowingconfrontation as well as a finding that the evidence i s reliable. State v. Wade , 863 S.W.2d 406, 409 (Tenn. 1993). In the case at bar there was no good

cause finding relating to the officer not

testifying at the rev

ocation proceeding. Thus, the trial court could not rely upon the matters set forth in the affidav its.

The state’s reliance upon State v. Charles Wayne Richardson , C.C.A. No. 03C01- 9503-CR-00065, Blount County (Tenn. Cri m. App. filed August 7, 1995 , at Knoxv ille), is misplaced. In that case this Court approved the reliance upon information set forth in an arrest warrant and affidavit to support a revocation; however, this Cour t specifically stated that this evidence was i ntroduced without objecti on. This eviden ce could , therefore, be considered substantively. In the case at bar, the appellant o bjected to the introduction of the evidence.-7- D. Necessity for Remand

We, therefore, conclude that the trial cour t erred in relying upon the new “charges” and affidavits of complaint. Since that was the sole basis relied upon by the trial court for revocation without any findings as to the other allegations, it is necessary that the matter be remanded for another revocatio n hearing. Although the appellant admitted to the use of marijuana, this was not relied upon by the tria l court; therefore, this Cour t is reluctant

to substitute its judgment for that of the trial court as to the effect of this admission.

E. Other Issues

For guidance upon remand, this Co urt would note that the int roduction of the laboratory report w

as also error. At the r

evocation hearing the s tate offered and the trial court admitted a one-page document from the clinical laboratory reflect ing a p ositive cocaine analysis. The introduction of this evidence does not meet the proper criter ia for admission. See State v. Wade , 863 S.W.2d at 409; State v. Gre gory , 946 S.W.2d 829, 831-32 (Tenn. Crim. App. 1997).

The appellant also argues that the trial court erred i n relying on the appell an t’ s fai lure to pay court costs. The tr ial court made no mention of appellant’ s failure to pay costs. However, in the ev ent this issue is presented upon remand, the trial court should conside r the is

sue in l ight of State v. Dye , 715 S.W.2d 36 (Tenn. 1986).-8- IV. SENTENCE ENHANCEMENT

The appellant

next argues that his sentences are excessiv e. He disputes the trial court’s application of both enhancement factors (8) and(13), see Tenn. Code Ann. § 40- 35-114(8), (13), and further argues that the court should have found as a mitigating factor that his criminal con duct nei ther caused nor threatened ser ious bodily injury , see Tenn. Code Ann. § 40-35-113(1).

When an accused challenges the l ength or manner of service of a sentence, it is the duty of this Court to conduct a de novo review on the recor d “with a presumption that the determinationsmade by the court from which the appeal is tak en are correct.” Tenn. Code Ann. § 40-35-401(d). This presu mption “is conditioned upon the affirmative showing in the record that the trial court cons idered the sentencing pri nciples and all relev ant fac ts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, th is Court must consider (1) the evidence, if any, received at the trial and the sentencing hear ing; (2) the presentence report; (3) the principles of sent encing and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct inv olved; (5) any statutory mitigating or enhancement factors; (6) any statement made by the accused in his ow n behalf; and (7) the potential or lack or

potential for rehabilitation or tre atment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The appellantcarries th e burden of showi ng th at his sentence is improper

. See Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments; State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).

The appellantargues that the trial court err oneously based its applic ation of enhancement factor (8), the appellant has a history of unwill ingne ss to comply with the conditionsof a sentence involving release into the community, upon the appellant’s current viol a tion of his community correcti ons sentence. This argument is not supported by the4 Given the appellant’s extensiv e record, it is quit

e possible that he was on on e of the applicable forms of release status; however, we find nothing in the record that so indicates. Moreover, Tenn. Code Ann. § 40-35-114(13) not only requires a defendant to be on one of the enumerated forms of community-based r elease, but also that he be onsuch release from a prior felony . The appellant’s criminal record does not reflect any prior felony convictions. -9- record. Rather, the prese ntence report reflects that the appellant has violated probation
on many prior occasions u nrelated to the present case. We, therefore, agree with the trial judge that the applicability of factor (8) is “abundantly clear.”

As to enhancement factor (13), the appel lant argues that “[t]here is no proof in the record that the appellant was on one of the forms of release status enumerated in section 40-35-114(13) at the time the crimes were committe d.” We agree. The trial court applied factor (13) based on the appellant’s being “charged with felonies committed while he [was]
on a community-based program.” This factor will apply

to the sentencing for those feloni es that the ap pellan t is accused of committing w hile serving his now-revoked community corrections

sentence, if and when theappellant is tried and convicted. However, there is no indication in the recor d that the appellant was on pr obation, parole, or any

other form of community release from a prior felony on August 5, 1995, when the

burgla ry and theft subject of the immediate resentencing w ere committed. 4 We, therefore, find that the trial court erred in enhancing the appellant’s sentence pursuant to factor (13).

It does not appear that the trial court intended to apply enhancement

factor (1), the appellanthas a previous historyof criminal convictions or criminal behavior

in addition to those necessary to establis h the appropriate range. See Tenn. Code Ann. § 40-35-114. The trial court’s only

mention of the app ellant’s c riminal history re lated to its finding that
consecu tive sentencing was warranted. N evertheless, pursuant to our de novo review, we find that enhancement factor applicable. See State v. Ada ms , 864 S.W.2d 31, 34 (Tenn. 1993) (“[T]he Court of Criminal Appeals .

. . is authorized to consi der any enhancement (or mitigating) factors supported by the record,” whether or not relied upon by the trial court.).
Finally, the appellant argues that the tri al court erred in failing to find that the appellan t’s c rime neither caused nor threatened serious bodily injury and to mitigate his-10-

sentence accordingly. See Tenn. Co de Ann. § 4 0-35-113(1). Although the appellant argued this facto r to the tri al court during the senten cing hearing, the cour t did not articulateany finding as to its applicability. But, while this Court has held tha t “even the absence of [enhancement or mitigating] factors must be recorded,” State v. Franklin , 919 S.W.2d 362, 366 (Tenn. Crim. App. 1996), the appellant provides no r ecord upo n which
we might determine the applicabi lity of this factor. We find, therefore, t hat the appellant has failed to carry his burden of showing that his sentence was improper. See Jernigan , 929 S.W.2d at 395.
In sum, we find that the trial court err ed in applying enhancement factor (13). We find no error in the applica tion of enhancement factor (8), and w e further find that the appellant’s sentence should have been enhanced pursuant to factor (1). As the appellant has failed to carry his burden of showing the applicability of any mitigating factor,we find
none. Given these conclusion s, enhancement of the appellant’s sentenc e to the Range I maximums of four and two year s, respectively, was appropriate.

V. CONSECUTIVE SENTENCING
Finally, the appellant challenges the trial court’s order for consecutive service of his sentences. At the sentencing hearing , the state intr oduced a presentence report of the appellant’s crimin al hist ory, al ong with the te

stimony of Prob ation Officer Carolyn Megar who had prepared the report. Megar testified that she compiled the report fr om information obtained from the District Attorney ’s office, the Williamson County Probation Department,
a William son C ounty record check, and an interview wi th the appellant. Megar di d not, however, further suppor t the report with cer

tified copies of the appellant’s c onvictions.
Rely in g on this presentence report, which shows some forty -four misdemeanor convictions, the trial court found that the appe llantis an offender whose record of criminal activity is extensive. See Tenn. Code Ann. § 40-35-115(2). The appellant challenges that finding, arguing that the evidence before the court was unreliable hearsay and that, in any5 Addressing t he reliability of a pres entence report, this Court previously stated, “[W]e see little problem in co ncluding tha t a trial court is in the best position to know the proceduresused by presentence officers in his or her court and is entitled torely on such a report’s contents, absent a showing that the report is based upon unreli able sources or is otherwise inaccurate.” State v. Richard J. Cro ssman , No. 01C01-9311-CR-00394 ( Tenn. Crim. App., Nashville, Oct ober 6, 1994). In the present case, Officer Megar, who prepared the report, testified and was cross-examined on her s ources and methods of preparation. Her answers satisfied the trial court, and they satisfy this Court as well.
6 In an analogous vein, this Court has upheld sentence enhancement upon a finding of a history of criminal convictions in additi on to th os e necessary to establis h the appropriate range, see Tenn. Code Ann. § 40-35-114(1), based solel y upon misdemeanor convictions. See Clifford T. Garrett v. State , No. 03C01-9408-CR-00296 (T enn. Crim. App. filed July 6, 1995, at Knoxville). -11- event, a finding of extensive criminal history may

not be appropriately based solely upon misdemeanor convictions. We disagree on both points.

With regard to the admissibi lity of ev idence at sentencing hea rings, Te nn. Code Ann. § 40-35-209(b) states: “ The rules of evide nce sha ll apply, except that reliable hearsay including, but not limited to, certified copies of convic tions or documents, may be admitted if the opposing party is accorded a fair opportunity to rebut any hearsay

evidence
so admitted . . . .” Although the cont ents of t he prese ntence re port were h earsay, we h ave no reason to doubt the r eport’s re liability. 5 Thus, we find no error in the trial court’s consideration of this evi dence in the present case.

As to whether it is permi ssible to find an extensive histor y of criminal activity based solelyupon misdemeanor convictions, we simply note that the applicable statute does not distinguish between misdemeanor and felony convi ctions. See Tenn. Code Ann. § 40-35- 115(b)( 2) (“The court may order sentences to run consecutively if the court finds b y a prepon derance of the evidence that . . . [t]he defendant is an of fender whose record o f criminal activity is extensive.”). We have no reservation in agreeing with the trial court that the appellant’s forty-four pr ior misdemeanor convicti ons, which include conv ictions for several assaults, thefts under $500, and other relativel y serious offenses, warr ant finding that he h as an exte nsive reco rd of crim inal acti vity. 6

VI. CONCLUSION-12- The order of revocation and res ulting sentencing judg ments are VACATED. The trial court shall conduct another revocatio n hearing . In the event the trial court again revokescommunity corrections, the challenged sentenc ing jud gments reflecting an effect ive sente nce of si x ye ars may be re-entered. An appeal may be taken as to the correctness of the trial c ourt’s action at the new revocation hearing.

____ ________

_________________________ _ L. T. LAFFERTY, Senior Judge
CONCUR:

(Not Participating) PAUL G. SUMMERS, JUD GE

_______________________________ JOE G. RILEY, Judge